This is Why We Have a Constitution, and Why the Alternative is Tyranny

New York’s Trespass Act of 1783 offered relief for Patriots who had fled New York City during the time of the Revolutionary “by permitting them to recover damages from persons who had occupied or used their premises during the war.” Common law had typically required “that actions for trespass must be tried where the property was located, but the act allowed Patriots to sue in any court where the defendant could be found.” It also denied the laws of war by prohibiting the accused of arguing that they had been acting “under orders of the occupying British army, and the act also prohibited the defendants from appealing to a higher court.” (Citations from Forrest McDonald, Novus Ordo Seclorum.)

The New York Trespass Act was but one of many factors that led to the creation of the written United States Constitution. Under the Articles of Confederation government, the states had almost unlimited authority to pass any laws they pleased. The only check on the state governments were the citizens of the several states. Unfortunately, the people themselves were often the impetus behind the enactment of unjust laws.

The Constitution was a reaction to life under the Articles of Confederation. Though conservatives like to point out that the government created under the Constitution is one of limited powers – a fact which is undeniably true – the Constitution actually enhanced the powers of the federal government and was meant, in part, to curb some of the excesses of unlimited state authority.

In truth the Constitution was a perfect balancing act. The Federalists hoped to strengthen the federal government while simultaneously placing significant limits on the powers of said government. They wanted to mitigate the excesses of democratic government in the states while continuing to leave most of the day-to-day governing authority in the hands of local government. The Constitution is a document designed to prevent the outbreak of democratic despotism, but which also aimed at limiting the reach of government. These are not contradictory aims. As much as it may surprise political philosophers such as Piers Morgan to hear, purely democratic governments can become tyrannical – ask Plato and Aristotle about that.

If we understand the genesis of our Constitution then we can better understand why we revere it and strive to live as much as we can by the letter of said Constitution. It’s not because it’s some old, musty document and we just have a blind devotion to old things. There was a wisdom and a theory behind the Constitution that made as much sense in 1787 as it does in 2013.

And now, due to the gun control debate, we have proof of why the Federalists were right, and why we are inching closer to tyranny.

Last night, by a vote of 43 to 18, the New York State Senate, which is run by a coalition of Republicans and breakaway Democrats,approved the new gun restrictions demanded last week by Gov. Andrew Cuomo, including a seven-round limit on magazines (down from 10) and a broader, California-style ban on “assault weapons.” Today the New York State Assembly, controlled by Democrats, followed suit by a vote of 104 to 43, allowing Cuomo to sign the legislation less than a week after he asked for it in his State of the State address last Wednesday—especially impressive given that yesterday was the first full day of the new legislative session. “The guns package was negotiated privately by the governor and legislative leaders over the last several weeks,” The New York Timesreports, “but was only completed late Monday,” so “rank-and-file Senators had only a few minutes to read the legislation before voting on it.”

By comparison, the panicky passage of the PATRIOT Act was a model of legislative deliberation. While six weeks passed between 9/11 and George W. Bush’s signing of the PATRIOT Act, only four passed between the Sandy Hook massacre and Andrew Cuomo’s signing of New York’s new gun controls. And unlike the New York legislature, Congress was actually in session during that period.

Such “unusual haste” (as the Times describes it) deviates from the normal rule, laid out in Article II, Section 14 of the New York Constitution, that at least three days must elapse between the introduction of a bill and a vote on it. The constitition allows an exception when the governor publicly explains “the facts which in his or her opinion necessitate an immediate vote.” Here is Cuomo’s explanation:

Some weapons are so dangerous, and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the state in order to protect its children, first responders and citizens as soon as possible. This bill, if enacted, would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State.

In other words, there was no time to consider whether magazines holding more than seven rounds or guns with certain arbitarily selected cosmetic features pose an intolerable threat to public safety, because these items pose an intolerable threat to public safety. Also, it’s for the children!

There’s more at the link. Sullum goes on to opine that the legislation won’t actually accomplish anything to curb gun violence, but it does introduce new legislation that could scare people away from mental health services.

Hurray!

President Obama today began his assault on the Second Amendment introduced several measures that he claims will also reduce gun violence. Citing the “But It’s For the Children Clause” of the Constitution, Obama issued a series of Executive Orders that will also do nothing to help curb gun violence, but which will also hopefully turn law abiding citizens into criminals.

While signing these executive orders at a wonderfully staged event, Obama issued a statement which so beautifully sums up the leftist ideology:

“If there’s even one life that can be saved then we have an obligation to try.”

Well yes, unless that life is a newly born child who survived an abortion. In that case, we just let the doctor stand around and play Parcheesi while the infant slowly dies. You see the latter doesn’t provide any good photo ops, so Obama is not so concerned with him.

Let’s get back to those old white men called the Federalists. Alexander Hamilton, a figure historical illiterates like to cite as a champion of big government, wrote in Federalist 71:

It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

Well, Hamilton got it half right. Citizens and government officials alike intend to do right, but the actions they take often make matters worse. Where Hamilton got it wrong – or perhaps where he was a bit naive – was in thinking that the President would be a dispassionate and wise individual who would lead people away from their delusions. He did not anticipate the rise of an individual who would be the first one grabbing the pitchforks and inciting the mob.

It is in this regard that Plato has proven truly prophetic.

The third class will be “the people,” comprising all the peasantry who work their own farms, with few possessions and no interest in politics. In a democracy this is the largest class and, when once assembled, its power is supreme.

Yes, but it will not often meet, unless it gets some share of the honey.

Well, it always does get its share, when the leaders are distributing to the people what they have taken from the well-to-do, always provided they can keep the lion’s share for themselves. The plundered rich are driven to defend themselves in debate before the Assembly and by any measure they can compass; and then, even if they have no revolutionary designs, the other party accuse them of plotting against the people and of being reactionary oligarchs. At last, when they see the people unwittingly misled by such denunciation into attempts to treat them unjustly, then, whether they wish it or not, they become reactionaries in good earnest. There is not help for it; the poison is injected by the sting of those drones we spoke of. Then follow impeachment and trials, in which each party arraigns the other.

Quite so.

And the people always put forward a single champion of their interests, whom they nurse to greatness. Here, plainly enough, is the root from which despotism invariably springs.

How does the transformation of the people’s champion into a despot begin? You have heard the legend they tell of the shrine of Lycaean Zeus in Arcadia; how one who tastes a single piece of human flesh mixed in with the flesh of the sacrificial victims is fated to be changed into a wolf. In the same way the people’s champion, finding himself in full control of the mob, may not scruple to shed a brother’s blood; dragging him before a tribunal with the usual unjust charges, he may foully murder him, blotting out a man’s life and tasting kindred blood with unhollowed tongue and lips; he may send to death or exile with hinted promises of debts to be cancelled and estates to be redistributed. Is it not thenceforth his inevitable fate either to be destroyed by his enemies or to seize absolute power and be transformed from a human being into a wolf?

. . . In the early days he has a smile and a greeting for everyone he meets; disclaims any absolute power; makes large promises to his friends and to the public; sets about the relief of debtors and the distribution of land to the people and to his supporters; and assumes a mild and gracious air towards everybody. But as soon as he has disembarrassed himself of his exiled enemies by coming to terms with some and destroying others, he begins stirring up one war after another, in order that the people may feel their need of a leader, and also be so impoverished by taxation that they will be forced to think of nothing but winning their daily bread, instead of plotting against him.

27 Comments

It is the word used to characterize every proposal one favors and to describe my comming around to the thinking of others. And so, reducing abortions while keeping the practice legal is a “reasonable” position and taking money from the “wealthy” to buy frivolous things for others is “reasonable.” if one holds to a view that a practice is inherently wrong, one is “unreasonable,” an “extremist.”

So it is with the firearms debate. Requiring citizens to register their firearms is simply “reasonable” we are told. To oppose this is “unreasonable” and fears of tyranny and Constitutional Rights, are viewed as unreasonable fears. So too with concerns about unilateral executive action. Since the legislature isn’t doing what the public clamors for quickly enough, it is “reasonable” for the President to act without authority to cater to the whim of the majority.

I fear, old friend, that you are right. Having forgotten lessons so painfully learned over 2000 years of Western history that liberty is hard won and easily and incrementally lost, we are wresting power from all authorities to resist tyranny.

If we understand the genesis of our Constitution then we can better understand why we revere it and strive to live as much as we can by the letter of said Constitution. It’s not because it’s some old, musty document and we just have a blind devotion to old things. There was a wisdom and a theory behind the Constitution that made as much sense in 1787 as it does in 2013.

Ach. It is an organic law, not a piece of canonical literature. The utility or disutility of a set of institutional arrangements is going to be quite sensitive to local circumstances. ‘Local’ can be understood spatially or temporally. Our constitution has been (for the most part) a failure in containing the sturm und drang of our political life for more than 80 years. Some serious adjustments are in order (though adjustments in institutional arrangements cannot in any direct and transparent way correct the toxic culture of the legal profession or official Washington).

Additionally, I shudder to think what the country would now look like without the Constitution. Imagine Obama issuing an executive order banning “dangerous and unnecessary” firearms, or one banning “seditious speech”. No, the Constitution is not merely an organic law but the concrete manifestation of the dream of the Founding Fathers of a Federal Union that would preserve the liberty that they fought for in the Revolution. In my eyes it is as “sacred” as any piece of secular writing can be composed by fallible men.

In the hands of the current crop of supreme court justices, the constitution has become a blank piece of paper on which 5 of 9 justices get to write anything they chose. Remember that it was just a few years ago that five justices decided that the second amendment was an actually individual right (DC vs Heller). If Kennedy had woken up that day and decided to play the liberal justice instead of the conservative one, we would effectively not have a second amendment and all this talk of gun rights would be irrelevant.
Think about that for a moment; the vote of one man has decided whether or not you have a basic freedom. I shudder when I think of what this nation has become.
The great experiment of the federalists has failed. The fears of the anti-federalists that a large central government would become a tyranny have materialized.

Precisely because a certain subset of our political class has ignored it. That is not a failure of the Constitution, but of both leadership and citizenship.

Oh yes it is a failure of our Constitution. Paul, Israel has functioned for more than 90 years with a body of constitutional law but not discrete charter with entrenched clauses and supermajority requirements. If your political elite is satisfactory, you can get along without a charter. The point of a charter is that it contains the discretion of elected officials and others invested with authority, and erects a mechanism which can function passably in spite of a rancid political culture. Ours doesn’t.

There are certain architectural features of our constitution which have been respected (as Robert Bork put it, “the stuff about elections every two years”), but the enumerated and limited delegations of discretion to Congress, the distinction between executive and legislative action, and the autonomy of provincial authorities have all been trashed. In addition, the immunities of particular communities and of households against federal or state authorities have been subject to judicial whimsies.

In the years immediately after 1929, there developed immense social pressure due to the economic crisis which was not properly contained by the existing political architecture. The pressure simply blew the existing structure down. What replaced it was a de facto constitution running on stare decisis and judicial misfeasance. A secondary shock was delivered during the years running from 1953 to 1971. The Constitution you are referring to really does not exist anymore. It is going to require some sort of national reformation to restore it even in part.

Added to all that is a phenomenon you see all over the western world: the efflorescence of a self-aggrandizing, pretentious, and antinomian culture among the professional-managerial class. This is most destructive as it develops in the bar. Students of Israel’s appellate judiciary contend that this body would clearly like to pull an Earl Warren but are constrained by the plenary discretion of the Knesset; what happened to Canadian jurisprudence after the enactment of the Trudeaupian Charter of Rights is well known. So, institutions matter, to a degree.

Our institutions prevented a set of principled and adaptive changes to the political economy in 1933-39 and did so again in 1954-71. Instead, we had open-ended aggrandizement of the central government. Those institutions continue to prevent effective remedial action against an appellate judiciary for whom misbehavior is the order of the day. They also prevent us from containing the erection and maintenance of a permanent Washington political class (remember what happened to U.S. Term Limits?). We also have an incredible problem of collective action with regard to public sector borrowing. It is hard to imagine a set of institutions less equipped to address that problem than the ones we have.

There is not much point in turning James Madison into the fictional Hari Seldon. The political culture stinks, but it does not stink so bad that our state legislators, working within political institutions which have some salient differences with federal institutions, cannot pass budgets. Madison and his contemporaries were making do in the matrix in which they were working and their handiwork sufficed in certain circumstances. However, the machine is broke and it is time to stop pretending and fix it.

Obama gives us Freedom From Religious Freedom Day without God.
Pilate to Christ: “What is TRUTH?” Pilate imposes his definition of TRUTH: “TRUTH is what I say it is. The human being is who I say he is” The despot tells Christ WHO Christ is. Christ responds: “You would have not authority except that it is given from above.” Obama’s proclamation of Religious Freedom Day, January 16, is the usurpation of authentic authority to redefine the Supreme Sovereign Being, the human being, freedom, religion, and the unborn sovereign person. Obama says:”Look, I give you freedom.” and who can argue with a plagiarist? Obama gives us Freedom From Religious Freedom Day without God.

In proclamation of Freedom of Religion Day, Obama says: Religious Freedom is what I say it is, and only what I say it is. This is the means that Obama uses to dictate to his constituents what their civil rights are. And some fools celebrate it as such. There can be no authentic freedom without the acknowledgment of God, Creator of man’s soul, Endower of unalienable rights. Freedom of Religion Day ought to dissolve the HHS Mandate and reinstate our founding principles.

!) Man is created equal, not born equal, a self-evident truth we hold.

2) Man is endowed by “their Creator” with unalienable rights.

3) Man is endowed by “their Creator” with an unalienable Right to Life.

4) Man is endowed by “their Creator” with an unalienable Right to Liberty

5) Man is endowed by “their Creator” with an unalienable right to pursue his Happiness.

6) Man is free to relate, to speak, to write and peaceably assemble with and for the Supreme Sovereign Being.

7) These, our founding principles were inscribed 225 years ago and cannot be vacated, redefined or plagiarized by Obama.

8) The unalienable right to the pursuit of Happiness vacates the HHS Mandate that is violating so many sovereign citizens’ conscience. The unalienable Right to Life vacates the HHS Mandate and abortion. The unalienable Right to Liberty vacates the redefinition of atheism as a religion.

9) Obama cannot give us a Freedom of Religion Day without God, for that is usurpation.

10) The Second Amendment cannot be changed without two/thirds of the states ratifying the change. Obama says that he has some Executive authority to change some of the Second Amendment, but Obama is mistaken. Eminent domain is no longer for public use and has been redefined for public purposes, such as the politicians’ new pay raise and vacation or maybe their health insurance. Only with two/thirds of the states ratifying such a change can the change be made. This is our Constitution.

11) We, the people, have failed “to secure the Blessings of Liberty to ourselves and our posterity”

The Constitution is written for the sovereign person, who has come into existence by the creative power of God. It is the sovereign person’s choice how he will worship and acknowledge God. I do not think that it is through aborting others.

Mary De Voe,
Impeachment!?
Congressmen / women are career-“minded & hearted” as they occupy a seat that is to be honorable and mission based. Serve the public…right?

Is this, the current abuses and what seems like run-a-muck hypocrisy the beginning of the end of our freedoms?
Executive orders and edicts leading to the “powder keg” that will soon feel the heat of a short lit fuse?

I believe your thread. You have aptly hit it!…the sovereign person.
I will continue to pray, protest and plead the case of Christ. For in him is our Hope, our Freedom and our Future.

Art, I’m not sure I disagree with much of what you wrote. Again, though, it actually affirms what the Framers believed. That society has crumbled as the constitutional safeguards they installed were ignored and done away with only confirms that what they feared about government and democracies was accurate. If there is fault with them and the Constitution is that there is no adequate means of addressing the issue of who has the final say on constitutional interpretation. If Hamilton was naive it was in writing things like the Judiciary would be the least dangerous branch of government. They did not foresee the rise of an imperial judiciary. And while they thought that the Supreme Court should be an arbiter of the Constitutional, they never believed it should be the final arbiter.

“Though conservatives like to point out that the government created under the Constitution is one of limited powers – a fact which is undeniably true – the Constitution actually enhanced the powers of the federal government and was meant, in part, to curb some of the excesses of unlimited state authority.”
This conservative in NY would appreciate a little curbing aimed at Cuomo&Co.

If a gang of fascists or imbeciles in legislatures (none campaigned on gun control) and courts are illegally amending or to repealing parts of the Constituion.

The political/social “contract” that bind us as a people is being torn asunder.

These tired, effete “people control” exec orders and gun confiscation laws would not have saved one Sandy Hook school child nor will they make one US pupil safer.

Criminals and madmen (by nature) don’t obey laws.

It is a special kind of stupid of which these people suffer. It’s the reason every trillion-dollar liberal wet dream has been a waste of those trillions of dollars and a waste time and effort, with the “beneficiaries” of the liberal wet dreams worse off ever after.

And, this idiocy explains the re-election (51% of voters) of the worst president in history and, concomitantly, the destruction of American peace and prosperity.

The deficits, money printing, regulations, and presidential hate-mongering cannot go on forever. And, it will not. Soon, the “fat lady” will have sung her last note.

Those stating that one of the purposes of the constition was to prevent state governments from trampling our freedoms should be aware that this was not true of the original constitution. The limits the original constitution placed on states were how states were to interact with each other and with foreign powers. For the first hundred years the Bill of Rights did not apply to the states, their constitutions had their own BOR’s. it was not till 1897 that SCOTUS decided that wasn’t good enough and started holding the states to selective amendments.

Those stating that one of the purposes of the constition was to prevent state governments from trampling our freedoms should be aware that this was not true of the original constitution.

Well the original Constitution didn’t go as far in this regard as some of the Framers would have liked. Madison’s original plan called for a national veto over state laws, and this was actually a major concern for him. But that got shot down at the convention. That said, the Constitution did pull back from the states some of the unbounded powers it enjoyed previously. But you’re absolutely right about the Bill of Rights not applying to the states until the Supreme Court discovered the magical jujitsu power of the 14th Amendment.

This conservative in NY would appreciate a little curbing aimed at Cuomo&Co.

The text of the 2d Amendment is as follows:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed

The plain meaning a) recognizes a personal right and b) specifies that what is referred to would be military arms. It does not specify the authority which may not so infringe. On the face of it, the people are immune from the actions of any public authority, not merely Congress and the agencies which act at its direction.

The thing is, ascertaining what the boundary conditions of this right are is a perplexing task. Clayton Cramer has been building a case that Saul Cornell (an obnoxious advocate of the view that the Amendment protects the franchise of the states to set up militias) has been defrauding his readers by systematically ignoring 19th century case law which recognized this as a personal right. That aside, there is a question of whether it applies against state governments or not. Aside from that, there is the question of how literally to interpret this formulation. As a rule, people do not conceive of a right of free speech to encompass a right to run up and down residential streets at three o’clock in the morning bare assed and screaming obscenities. What would be the analogous situation with regard to 2d Amendment rights?

(Personally, I would be pleased if Gov. Cuomo would propose amendments and legislation to scrape the barnacles off the state’s hull. Our political architecture is a mess, but no element of the political class seems to care, including the journalists who cover the legislature. At least Mr. Zummo will likely not tell me that the Unified Court System or the Town Law have no design flaws).

“As a rule, people do not conceive of a right of free speech to encompass a right to run up and down residential streets at three o’clock in the morning bare assed and screaming obscenities. What would be the analogous situation with regard to 2d Amendment rights?”
@Art Deco
1) Only truth is allowed freedom in the public and private spheres. Obscenities are out and a person must be arrested, that is stopped, by peace keeping officers and officials.
2) Curfew laws are in place even if not widely acknowledged. No noise after ten o’clock.
3) When I stop laughing I will write. The exposure of the human body must be respected and have an important reason. Take Lady Godiva. Lady Godiva was protesting the heavy taxes. Her husband was the tax collector. She gave him back her clothes, as did St. Francis, informed the town of her protest and asked for indulgence.
4) Rightfully so. If the government disarms the person and injury is inflicted, the government becomes an accessory after the fact, not only for disarming the citizen, but for not protecting the citizen. The state then becomes liable to restitution for its failure to safeguard the citizen, and also complicit in disarming the citizen. Double jeopardy for the citizen, none for the culprit and his accomplice, the state. Endangerment is against the law, even for Cuomo.

@Philip: The sovereign person constitutes the state. As you have probably read me before, the sovereign person loses his sovereignty when he consents to crime and sin, murder and lying. Criminals do not constitute the state. The sovereign person who constitutes the state and the state, itself must be protected from such and the Department of Justice is called into being by such a need. Any individual human being who presumes to deprive another sovereign person of his sovereignty, civil rights and Creator endowed unalienable rights forfeits his own unalienable rights. The atheist forfeits his own Creator endowed unalienable rights by despising, rejecting and repudiating, actually plagiarizing and impersonating the Creator, the Supreme Sovereign Being and Endower of sovereignty. The proof of this fact is that the atheist does not endow LIFE, nor does the atheist bless LIFE. Life, for the atheist, must be snuffed out by the atheist because HUMAN LIFE gives testament to the Supreme Sovereign Being, creator of LIFE. The Right to LIFE inscribed in the Declaration of Independence is from “their Creator”, and not from the community as the Declaration on Human Rights of the United Nations declares. One nation under the world bank would impose these godless human rights that might be disposed of by the state, by the “community” that plagiarizes these rights from God.
In an act of free will, the atheist rejects the Creator of his free will, thereby making of himself, a beast of burden to the state, making of himself a human being devoid of his rational, immortal soul. The atheist then imposes his dehumanizing decision on sovereign and free people to make himself “somebody”.
A real somebody praises God every second of every day for his being.